Larry Catá Backer's comments on current issues in transnational law and policy. These essays focus on the constitution of regulatory communities (political, economic, and religious) as they manage their constituencies and the conflicts between them. The context is globalization. This is an academic field-free zone: expect to travel "without documents" through the sometimes strongly guarded boundaries of international relations, constitutional, international, comparative, and corporate law.

Saturday, February 27, 2016

Jean Mittelstaedt on Jerome A. Cohen, “A Looming Crisis for China’s Legal System: Talented Judges and Lawyers are Leaving the Profession, as Ideology Continues to Trump the Rule of Law”

Issues of democratic legitimacy of the Chinese political, constitutional. legal and economic order are fairly common in the West. Indeed there are legislative institutions in the U.S. Congress whose sole business is the production of such critique (e.g., the U.S. Congressional-Executive commission on China).

But there are differences in the way one can go about making those critiques, each of which might produce substantially distinct insights. In the West, for example, it is common to apply what I call the outside-in approach. That starts from the set of premises extracted from global consensus or the reading of democratic traditions among influential states, and then projects those into China, comparing how the Chinese approach stacks up against these outside models. A less common approach, but one sometimes used by comparative scholars is what I call the inside-out approach. This starts by a rigorous examination of the system to be examined, both the theory and practice of governance, and then projects those out against a set of foreign markers. The outside-in approach tends to reveal more about the foreign system projected inward and the extent of global harmonization, along with the character of that harmonization. The inside-out tends to provide greater insight into the working of the system examined and the extent to which the gaps between theory and implementation reveal weakness, including coherence in form or function that might be advanced through a study of foreign systems.

Jerome Cohen, Professor of Law at New York University, one of the great scholars of China in the United States, has recently produced a marvelous essay that for me highlights what may be some effects that follow the choice of methodology (Jerome A. Cohen, “A Looming Crisis for China’s Legal System: Talented Judges and Lawyers are Leaving the Profession, as Ideology Continues to Trump the Rule of Law,” Foreign Policy (February 22, 2016)). The essay provides a powerful consideration of the consequences of the current Chinese approach to legal reform and its suggestion of the underlying structural deficiencies of the current normative Chinese political order. These judgments are made against an application of the standards of universal legal values which China has endorsed. The essay suggests the value of an outside-in approach. But it also exposes the possibilities for a distinctive approach and another potentially rich vein of analysis using an inside-out approach.

In his essay titled “A Looming Crisis for China’s Legal System,” Jerome A. Cohen paints a bleak picture of the Chinese legal system. The courts “are full of corruption” and “political interference is pronounced.” However, “there is discreet, if passive, resistance.” According to Cohen, legal professionals want to “inhabit a real legal system,” thus taking “legal reforms seriously”. While this dichotomy between legal professionals and the Chinese Communist Party (CCP) is to some extent a dim reality, I take issue with Cohen’s underlying assumption that the principle aim of a legal system is to be neutral and independent. While laudable, this entry point clouds an assessment of where the legal system is moving because it neglects the fundamental role of the political power organizing it: the CCP.

The legal system does not operate in a vacuum. When starting an analysis from the legal system, it is necessary to locate its place within the Chinese polity. Cohen acknowledges this when he writes, “politics continues to control law”. However, this control is rooted deeper than he acknowledges. If politics indeed controls law then how is law understood? Fa 法 has traditionally been an instrument of governance disconnected from a concept of “rights”.[1] As an instrument of governance, law and the legal system have to be judged against the self-professed aims of the CCP: the promotion of economic wealth and social stability.

The aim of economic wealth is set forth in the Preamble of the Constitution as well as in the general program of the Party Constitution. Within Xi Jinping’s “Four Comprehensives,” strictly ruling the Party, governing the nation according to law and deepening reform all serve the construction a moderately prosperous society (小康社会).[2] The plan for the establishment of a rule of law government (2015-2020) published in January 2016 highlights the importance of promoting rule of law development for achieving the two aims of “two one hundred years” and the “rejuvenation of the Chinese nation”.[3] In February 2016, the President of the Supreme People's Court, Party Secretary and Chief Justice Zhou Qiang writes that courts should internalize the five big development principles to make a positive contribution to the socio-economic development and the realization of the 13th five-year plan.[4] Another recent example is the Notice of the Supreme People’s Court to lower level courts to support the One Belt, One Road initiative.[5] The Court subsequently published another Notice stressing the political side of ruling and the necessity to engage in studying the Party Statute.[6] These Notices did not just showcase the organizational dominance of the CCP, but also invariably led to a relative change of priorities, thus shifting the basis of what good judgment means.

The examples given are not outliers but represent the norm in policy documents and official discourse. What they show is that the standard against which the legal system should be judged are not abstract concepts such as judicial independence or human rights but rather its effectiveness as an instrument to provide legal support for the CCP’s policies.

Social stability is a task the Political and Legal Affairs Committee has taken up. In 2014, Wang Yongqing, the Secretary General of the Central PLAC, argued that rule of law thinking means understanding how to balance powers.[7] This thinking is constructive and acts according to procedure while simultaneously maintaining justice and neutrality. In a speech at a meeting of the Central PLAC, Meng Jianzhu, member of the Politburo and the Secretary of the Central PLAC stressed the crucial role of the PLAC in standardizing the relationships between judges, procurators, lawyers and the police[8].[9] Similarly, analyzing Xi Jinping’s speeches and writings, Qiu Shuiping concludes that Xi’s thinking on the role and mission of the PLAC can be boiled down to “five factors to focus on more” (五个更加注重), including just law enforcement thinking, construction of law enforcement, publication and information campaigns to foster public trust,[10] reinforcing the responsibility to enforce the law, and the establishment of a good environment for this enforcement. Quoting Xi Jinping, he emphasizes that the “life line” (生命线) of the PLAC is to be fair and just.[11]

Hence, the PLAC’s task is to mitigate social conflicts while balancing different interests,[12] rather than intervening in individual cases.[13] As such, it has to create a favorable environment.[14] This means that justice does not flow from a strict interpretation of the law rather than being a constructed synthesis of different influences and interests. Examining stability preservation in a Chinese county, Yan Xiaojun of the University of Hong Kong notes that the Secretary of the local PLAC is in charge of the effort to pre-empt threats to socio-political stability.[15] Yan further points out that in higher developed counties the process of dispersion is highly institutionalized and bureaucratized. In this, social justice is pitted against justice by law,[16] which is in the service of social and political stability.[17]

Given the deep subordination of law to politics, what role is given to lawyers? The theoretical exemplification of this leadership in the legal area finds its evidence in the Fourth Plenum’s communiqué on the rule of law from 2014. On the role of law professionals, the Party wants to “develop a contingent of professionals devoted to the socialist rule of law and loyal to the Party, the country, the people, and the law.”[18] The Deputy Minister of Justice, Zhao Dacheng, notes that the position and role of a lawyer is to mediate conflicts in society and protect stability.[19] A judicial research task group at the Ministry of Justice suggests basing the assessment of lawyers in their ability to create “positive energy” (正能量).[20] “Positive energy” is a composite of three quantifiable factors: (1) discourse consensus (舆论共识); (2) degree of government recognition (政府认可度); and (3) degree of discourse rationality (舆论理性度).[21]

In practice, this means that legal scholarship is constrained by control of teaching assignments and limits to publications that exist on the university level, but also through Party influence on legal training in universities,[22] unified exam procedures,[23] and political rituals.[24] The Fourth Plenum has put education of the rule of law for citizens on the agenda.[25] This especially pertains to the construction of a law culture.[26] An example for the intimate connection between education, Party, and the courts is the cooperation between the Fourth Intermediate Court in Beijing and the Political and Legal Studies University on the role and tasks of lawyers.[27]

Hence, rather than focusing solely on legal institutions, the oppression lawyers face from the state or government interference into cases, it is perhaps of even greater value to understand this system from within the confines of the aims of the CCP. Law is not all-powerful but on par with other instruments such as ideological education, Party building or economic reform. Thus, the Chinese legal system must be understood holistically as inseparable from the aim of achieving a moderately prosperous society and the CCP’s political, ideological and organizational leadership that is outlined in the CCP’s Constitution. As the promulgation of norms, this leadership encroaches on the whole of society through the strengthened built-up of grassroots Party organizations, ideology and education, while being politically set into stone within the Constitution.

Renmin wang 人民网 [People's Net]. 2016. ""shibada yilai falü gongtongti yulun shengtai jianshe baogao" fabu《十八大以来法律共同体舆论生态建设报告》发布 [Release of "Report on the establishment of a discursive ecology for the law community since the 18th National Congress of the CCP"]." Renmin wang 人民网 [People's Net], Last Modified 20 February 2016 Accessed 22 February 2016. http://legal.people.com.cn/n1/2016/0220/c42510-28136604.html.

Chen and Xu point out that the problem essentially is the balancing between judicial professionalism (commitment to laws) and political goals (harmony). The difficulty is that the distinction is often not clear. See (Chen and Xu 2012)

[7] (Wang 2014a) Cai Xia argues that “democracy,” “rule of law” and “constitutionalism” are important methods for easing up conflicts. The CCP must prove its adaptability through embracing them. See (Cai 2013)

[8] The co-option of the police means that up to 90% of public security chiefs were being incorporated into leadership teams, rendering them more loyal to the Party. See (Wang 2014b)

[9] (Meng 2015)

[10] See also (Legal Daily 2015a)

[11] (Qiu 2014)

[12] Indeed, the Legal Daily notes that the Supreme People’s Court has thoroughly implemented the Notice given by the Central PLAC concerning the commutation of temporary parole sentences and preventing corruption in the judiciary. See (Legal Daily 2015b)

[13] (Changanjian 长安剑 2016)

[14] (China Chang'an Net 中国长安网 2015)

[15] (Yan 2016)

[16] It is particularly telling that the assessment standard for a court is to bridge the gap between legal work and public feelings. See (China Daily 2016)

[17] (Biddulph 2015, 238)

[18] (Compilation and Translation Bureau of the Central Committee of the Communist Party of China 2014)

[19] (Zhao 2015) Indeed, Xu Xin argues that the reform will strengthen control over lawyers. See (Xu 2015)

[22] This is based on official policies from 2011 and 2013: (Ministry of Education and Central Political and Legal Affairs Committee 2011, Ministry of Education et al. 2013)

[23] (CCP Central Committee 2015)

The People’s Daily points out that part of the reason is to enhance lawyer’s morality. See (People's Daily 2015) See also (Xinhua 2015b)

[24] (Yan 2014)

[25] (Xinhua 2015a)

[26] Zhang Xiaolian argued that the establishment of a law culture is the basic guarantee of the construction of the rule of law. Just when the rule of law becomes part of the way of living as an unconscious restriction, just then will rule of law be interiorized and be effective. See (Zhang 2015)

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All essays are (c) Larry Catá Backer except where otherwise noted. All rights reserved. The essays may be cited and quoted with appropriate reference. Suggested reference as follows: Larry Catá Backer, [Essay Title], Law at the End of the Day, ([Essay Posting Date]) available at [http address].

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Globalization: Law and Policy will include an integrated bodyof scholarship that critically addresses key issues and theoretical debates in comparative and transnational law. Volumes in the series will focus on the consequential effects of globalization, including emerging frameworks and processes for the internationalization, legal harmonization, juridification and democratization of law among increasingly connected political, economic, religious, cultural, ethnic and other functionally differentiated governance communities. This series is intended as a resource for scholars, students, policy makers and civil society actors, and will include a balance of theoretical and policy studies in single-authored volumes and collections of original essays.

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About Me

I hope you enjoy these essays. Each treats aspects of the relationship between law, broadly understood, and human organization. My essays are about government and governance, based on the following assumptions: Humans organize themselves in all sorts of ways. We bind ourselves to organization by all sorts of instruments. Law has been deployed to elaborate differences between economic organizations (principally corporations, partnerships and other entities), political organization (the state, supra-national, international, and non-governmental organizations), religious, ethnic and family organization. I am not convinced that these separations, now sometimes blindly embraced, are particularly useful. This skepticism serves as the foundation of the essays here. My thanks to Arianna Backer for research assistance.